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Community Update

May 2020

Stay up to date with Becker’s dedicated resource page on COVID-19. We are updating the information on this site on a daily basis. All information is posted to educate and inform our clients but does not constitute specific legal advice for your community. Please consult your Becker attorney for questions specific to your own community. CLICK HERE

In this Issue

We all know the old adage, “April showers bring May Flowers,” and while springtime is in full swing, it looks as though we may also be slowly emerging from the COVID-19 fog with businesses beginning to cautiously reopen across the state. The month of May also means that we are gearing up for the start of hurricane season which formally begins next month. This edition focuses on all of these timely topics and more. We hope that you find this content informative and helpful and, as always, we wish you and your family continued health and safety in the weeks ahead.

Damages from a hurricane may not present themselves for several years, which is why it’s critical to have your property inspected by a professional soon after the disaster. Learn more in our featured article, Hurricane Insurance Claim Deadlines.”

What requirements must an individual meet to hold the title of director? Find out in “Does a Condominium Director Have to Also Be a Member?”

Not being able to easily alter your condominium’s common elements stems from the outcome of THIS CASE. Read more in, Sterling Village Association, Inc. v. Breitenbach.

Lastly, don’t miss May’s Spanish article, Aprobación de Arrendatarios.”

If you have new members on your board or a new manager for your community and want them to be part of our Community Update, have them subscribe here:

Mark D. Friedman, Esq. & Jay Roberts, Esq., Editors


Section 1

Does A Director of a Condominium Association Have to Also Be a Member?

By: Elizabeth A. Lanham-Patrie, Esq.

While it may seem to many unit owners that a director must also be a member of the association, this is not necessarily the case. This question is document driven. If the governing documents of a condominium association do not specifically require that a director also be a unit owner / member, then under Florida law it is not a requirement.

Click here to read more!

This Case

Sterling Village Association, Inc. v. Breitenbach

251 So.2d 685 (Fla. 4th DCA 1971)

By: Mark Friedman, Esq.

Have you ever wondered why it isn’t easy to just alter the condominium’s common elements?

The Condominium Act, Section 718.113, Florida Statutes, requires approval of a material alteration by using the requirements found in the declaration of condominium and, if the declaration is silent, then the statute requires the approval of 75% of the total voting interests. The question becomes, what is a material alteration?

The Fourth District Court of Appeal gave meaning to the term in Sterling Village v. Breitenbach in 1971. The definition is used to this very day. The Court held that “the term ‘material alteration or addition’ means to palpably or perceptively vary or change the form, shape, elements or specifications of a building from its original design or plan, or existing condition, in such a manner as to appreciably affect or influence its function, use, or appearance.”

The facts of the case centered around whether the substitution of glass jalousies for screen was a material and substantial alteration within the meaning of those terms. The Court concluded it was. While that material alteration may seem obvious by today’s standards, there are many types of alterations which are less obvious such as changing the use of a particular area of the common elements, installation of security cameras, etc.

So, why does THIS CASE matter? The Division of Florida Condominiums, Time Shares and Mobile Homes, through its arbitration decisions have used the definition for even the smallest changes, deeming them “material” and requiring an approval vote If your association is contemplating any change in the association-owned real property, common elements, or limited common elements you should consult with your community association attorney prior to signing any contract for that work. Another reason to consult with your attorney on this issue is that there are times when a material alteration is legally considered only maintenance, without the necessity of a vote; but we’ll leave that case discussion for next month’s THIS CASE article.


Aprobación de Arrendatarios

By: Marty Platts, Esq.

Si su comunidad requiere que un arrendatario futuro sea aprobado por la asociación, debe de recordar y tomar en cuenta la ley que requiere que las asociaciones de comunidades procesen las solicitudes de arrendamiento de miembros de las fuerzas armadas dentro de 7 días después que la solicitud sea sometida, independientemente del periodo de tiempo determinado por los documentos rectores. Para asegurar que su comunidad no viole esta ley inadvertidamente su asociación debe considerar hacer una enmienda a su solicitud para incluir una pregunta sobre si el arrendatario es miembro de las fuerzas armadas según se define en la s. 250.01, de las leyes de la Florida (Florida Statutes).

Lee mas

Question of the Month

Q: I am a new owner of a home located within a deed restricted community. Many of the lots, including mine, have large oak trees located between the rear of the residence and the community property line. The oak trees are never trimmed by the association. One oak tree in particular is located on common property but the huge branches extend out and hang over the roof of my home. I’ve asked the president of my association to trim these tree branches. He has refused to take any action and he told me that I cannot touch the trees or the tree branches and that I must “leave them alone.” I am very concerned about potential damage to my home from these trees and tree limbs given that hurricane season is approaching. Can I trim the tree branches that hang over on to my property?

Shareholder David Muller, Esq. discusses the answer to this and more.

Click here to read more!

Can They Do That?

Episode 16: Employer Mandated Quarantine After Traveling – “Can They Do That?” – Episode 16 is Live!

“I’m planning a trip to visit my family, however my employer is telling me that if I go I’m not able to come back to work. My employer is mandating a 14-day quarantine that begins once I get back home.” Can they do that? Find out the answer in this month’s episode from Employment Shareholder Jamie Dokovna!

When it comes to association rules and bylaws, there seem to be more questions than answers. Becker’s video series, “Can They Do That?” tackles some of the unique problems that homeowners and renters face today. We answer questions, no matter how far-fetched they may seem. From service animals to nudists in your community, we get to the bottom of it and let you know – “Can They Do That?”

Don’t miss out on new episodes of “Can They Do That?”
Subscribe to Becker’s YouTube channel!

Occupancy Restrictions and the FHA

By: JoAnn Nesta Burnett, Esq.

Many Associations’ Declarations contain occupancy restrictions relating to the number of bedrooms in a home or unit. The standard provision reads two person per bedroom are permitted in a unit or home. However, does this occupancy restriction violates the federal and/or Florida Fair Housing Acts (“FHA”)? The short answer is, it depends.

Click here to read the full article.

Donna Berger Appointed Co-Chair of The Florida Bar’s Pandemic Task Force

Shareholder Donna DiMaggio Berger, Esq. has been appointed as Co-Chair of the Florida Bar’s newly created Pandemic Task Force. Howard Cohen of Buchanan Ingersoll & Rooney will serve as Co-Chair. The mission of the task force is to revisit the emergency powers found in Chapters 718, 719, and 720 of the Florida Statutes and to draft legislative changes needed to help boards better contend with both natural disasters such as hurricanes and pandemics, as well as other medical emergencies.

Stay tuned for more information!

On the Board: Privacy Protected

By: Jack Kallus, Esq.

Board members must navigate a number of responsibilities including legal issues. As a board member, do you know how to protect your privacy and avoid exposure when faced with a lawsuit? Becker Shareholder Jack Kallus shares his expertise for “On the Board,” a column in Common Ground: CAI’s magazine for Community Association Leaders.

Click here for more.

Condo Dwellers Give up Some ‘Personal Rights’ Amid Covid-19 Pandemic

By: Rosa de la Camara, Esq.

For those living in community associations during the time of COVID, the changes are radical. Not only are condo dwellers expected to abide by federal, state and municipal legislation mandating social distancing, masks and isolation protocols, they must also follow the regulations put into place by their association’s board of directors.

While some of the regulations imposed by associations tread on individual rights, the board of directors has a fiduciary duty towards the unit owners and decisions must be made which are deemed in the best interest of all of its members.

Read More.

Someone is Sick: Now What?

Community Association Insider

What do you do when one of your community association members is diagnosed with the COVID-19? Becker Shareholder Jennifer Horan, Esq. reminds board members to exercise caution when considering privacy rights of residents, while also being transparent.

“I tell my boards in condo associations that they don’t necessarily have the duty to inform the owners that there’s been a positive test, but that it’s probably the best idea,” Horan says. “It depends on how active the community is, what kinds of amenities you have, etc. The more closely the residents gather, the greater the duty.” Most importantly, boards must consider the privacy rights of their residents. “There should be no identifying information unless the owner agrees in writing.”

Read more from Community Association Management Insider. 


Becker is offering a FREE Online Board Certification Class!

As a service to the community and industry, we are pleased to make our HOA/CONDO Board Member Certification class available to you online.

Statewide Suspension of Community Association Classes

Becker has been closely monitoring the latest coronavirus (COVID-19) developments. In the continued interest of the health and safety of our clients and colleagues, we have made a decision to continue the suspension of all Community Association classes until further notice.

As always, we will keep you informed of any changes and updates.


Did You Know?

2020 Florida Session: Legislative Update

If you’ve been wondering what happened to the legislation that the CALL Team tracked throughout Florida’s 2020 Session, we have been as well! All bills were held back and will not be released until Governor DeSantis receives revenue estimates to help him determine their fiscal impact. The State’s Operating Budget must be passed by July 1, so all passed bills will be sent over to the Governor on or before that deadline.

Given these delays, our Legislative Guidebook will similarly be delayed until such time as the Governor has acted upon all bills which can directly or indirectly impact Florida community associations. Rest assured that we will alert you as soon as the bills that concern our CALL members have been sent over to the Governor.


Navigating COVID-19 in the Workplace: Are You on the Right Path?

Becker Shareholder Jamie B. Dokovna, Esq., who focuses her practice on employment law, and Dr. Shanequa Fleming, Founder and CEO of human potential development firm, Perfect Solutions Consulting, sit down for a candid conversation on handling COVID-19 in the workplace. The dynamic discussion explores safely returning employees to the workplace and what future trends are predicted in light of COVID-19. Watch the replay.

May 21

Risky Business: What Owners Need to do When Reopening Facilities

As community associations, country clubs, retail, and mixed-use facilities begin to look ahead to reopening spaces, the big question is – how do they do so safely? Becker Construction Chair Steven B. Lesser, Esq. and Community Association Chair Kenneth S. Direktor, Esq. are joined by experts from Signal Restoration, a leading provider of commercial sanitization services, for this informative webinar. Watch the replay.

May 19

COVID-19 Best Practices for Community Associations

Becker Shareholders David G. Muller, Esq., Rosa M. de la Camara, Esq., and Steven H. Mezer participated in a webinar discussion hosted by KW Property Management and Consulting (KWPMC). KWPMC Managing Director, Tim O’Keefe, moderates this weekly webinar addressing best practices for HOAs and Condo Associations. Watch the replay.

May 13

Combating COVID-19 In Your Community Association Episode 8

Becker Shareholder Donna DiMaggio Berger, Esq. was joined by CEO and founder of the Castle Group, James Donnelly, as they discussed implementing and adjusting re-opening plans and amending documents. Watch the replay.

May 13

Community Associations and the “New Norm” in Light of COVID-19

The COVID-19 virus has substantially impacted all types of community associations throughout Florida. From closing amenities, to limiting access by non-residents, taking in travelers from other parts of the country, and reacting to the endless flow of emergency and executive orders from the state, counties, and municipalities, associations across Florida have struggled to adapt to this highly fluid situation. Becker Shareholders Kenneth S. Direktor, Esq., Donna DiMaggio Berger, Esq., Rosa M. de la Camara, Esq., Jay Roberts, Esq., and David G. Muller, Esq. discuss. Watch the replay.

May 5

Reopening Your Association – Steps to a Safer Community During COVID-19

Becker Orlando Office Managing Shareholder Patrick Howell, Esq. appeared on this ASCEND hosted webinar to discuss how community associations will slowly begin the process of reopening common areas and pools. Watch the replay.

May 4

Busier Than Normal Hurricane Season Predicted: Are You Prepared?

Community association boards and managers should ensure that their communities have adequate disaster planning measures in place as hurricane season approaches. To help you in weathering the storm, check out Becker’s Hurricane Guide which provides important tips and information to help protect your community.